IN THE GAMBIA COURT OF APPEAL

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Let me quickly make the observation at this juncture, that I have carefully considered the entire evidence tendered at the court below and I see no where, where the Respondents herein admitted that the agreements they entered into for the use of the Banna Beach Hotel was with the Appellants. There is no doubt there was an agreement for the use of the Appellant hotel by the Respondent, the Respondents admitted this fact. However, they have maintained all through that they contracted with PWI, Sheriff Marong, in his personal capacity as the owner of the Appellant Hotel and not with the Appellants. There is no doubt that PWI Sheriff Marong was the Managing Director of the Appellant Hotel. I however find that the mere fact that he was the Managing Director, and as contended by the Appellants, signed the 2 agreements in his capacity as such, does not establish the fact, of the parties to the said agreement. Appellants contend that the question of the parties to the agreement is one of the exceptions enumerated in S.138 of the evidence Act of the Republic of The Gambia 1994, and thus can be resolved by oral evidence. With all due respect, the Appellants contention on this issue at the Lowe Court as contained in Counsel’s Submissions to be found at pages 382 to 385 of the record is not tenable. S.138 (1) (a) and (3) relied upon by learned counsel for the Appellants in the Appellants brief under issue number three, cannot in my views, aid the position of the Appellant on this subject matter. S.138 (1) (a) provides “provided that any of the following matters may be proved. (a) Fraud, intimidation, illegality, want of due execution, the fact that it is wrongly dated, existence or want of failure of consideration, mistake in fact or law, want of capacity in any contracting party or the capacity in which the contracting party acted, when it is not inconsistent with the terms of the contract, …………(underline mine) 48
It is obvious that the foregoing legislation deals with the question of oral evidence to establish the capacity in which a contracting party acted, and not oral evidence to establish who the contracting parties were. It’s beyond dispute that the parties to the agreement, if disputed, can only be deduced from the agreement itself. Similarly I hold the view that S.138 (3) which provides thus “Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by a document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on” cannot also advance the cause of the Appellants. I say so because whilst not disputing that fact that oral evidence can be given as to the parties to a written agreement, however, where there is a conflict in the oral evidence tendered as to the actual parties to the agreement, as is the position in this case, that conflict can only be resolved by the production of the written agreement itself. It is my views that where there is a conflict as to the parties to an agreement, the status of the parties automatically fall within the purview of the terms on which the agreement was established and is to be carried on and in that event can only be resolved by the production of the written document itself and not by the oral evidence tendered. On the whole I agree entirely with the Learned Trial Judge, that in the face of the pleadings and the state of the evidence at the Lower Court, the question of the parties to the agreement for the use of the Banna Beach Hotel by the Respondents can only be deduced from the agreements themselves. Similarly, the question of what the terms of the agreements between the parties therein were, to determine whether these was actually a breach of the contract and if there was, what terms were breached, is also one within the province of the agreements themselves. It is only if there was a breach, that the question of damages would arise. 49
Page 1 and 2: IN THE GAMBIA COURT OF APPEAL BANNA
Page 3 and 4: (5) The Learned Trial Judge was wro
Page 5 and 6: 2. Whether the fact that the Defend
Page 7 and 8: appealing against two decision of t
Page 9 and 10: 4) The Learned Judge was wrong in r
Page 11 and 12: I have myself carefully perused Gro
Page 13 and 14: Bank of The Gambia V Continent Bank
Page 15 and 16: Evidence Act of The Gambia is in pa
Page 17 and 18: wrongful admission or exclusion of
Page 19 and 20: Furthermore, I am in complete conso
Page 21 and 22: It was submitted for the Appellant
Page 23 and 24: intends or conveys. What actually i
Page 25 and 26: ISSUE THREE Whether the Appellants
Page 27 and 28: The true parties to the said agreem
Page 29 and 30: 1. The Plaintiff’s is a limited l
Page 31 and 32: 3. The Defendant denies that it mad
Page 33 and 34: By letter of the 3 rd February, 200
Page 35 and 36: 23. Save as hereinbefore expressly
Page 37 and 38: The Plaintiff’s further averred t
Page 39 and 40: In the said letter the Defendants s
Page 41 and 42: 8. Paragraph 8 of the Reply of Stat
Page 43 and 44: Now the Appellant case at the trial
Page 45 and 46: 4 th of November 1998 and the 3 rd
Page 47: the purpose of adding a term to the
Page 51 and 52: appellant. There is no doubt that i

IN THE GAMBIA COURT OF APPEAL

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